Noah Feldman

An op-ed by Noah Feldman. Can a woman be a rabbi? For many American Jews, the issue is long settled: The Reform movement first ordained a woman in 1972; the Reconstructionist movement in 1974; and the Conservative movement in 1985. Regina Jonas, usually considered the first female rabbi, was ordained in Germany in 1935, and died at Auschwitz after serving as a rabbi in the Theresienstadt concentration camp. For Orthodox Judaism, however, the issue has been more complicated. In the past week, the two major Orthodox rabbinical associations in the U.S., the Rabbinical Council of America, which is roughly modern Orthodox, and the Moetzes Gedolei HaTorah of America, roughly ultra-Orthodox, issued public statements condemning in definitive terms the possibility of Orthodox women being ordained as clergy.

An op-ed by Noah Feldman. Pot is news, and Ohio voters’ rejection of an amendment to legalize marijuana Tuesday deserves the headlines it’s gotten. But a more important story is easy to miss: Those same voters amended the Ohio Constitution to make it very difficult for future initiative promoters to give themselves a monopoly through the state referendum process. The new amendment was targeted at the marijuana growers, who wanted a monopoly in exchange for having advocated legalization. Yet the new amendment is an important example of a very unusual constitutional phenomenon: an entrenching amendment that makes future amendments much harder.

An op-ed by Noah Feldman. How would you feel if your 10-year prison sentence depended on a dangling modifier? That's the situation for Avondale Lockhart, whose case was heard Tuesday by the U.S. Supreme Court. Lockhart was caught in a federal sting and pleaded guilty to one count of possessing child pornography. He had a previous state conviction for attempted rape, a form of sexual abuse. According to federal law, Lockhart gets a mandatory 10-year minimum sentence for the child pornography if he had a prior state conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” The crucial words here are “involving a minor.” Lockhart says they apply to the whole sentence. Because his prior conviction was for attempted rape of a woman, not a minor, the law doesn't apply to him. The government says “involving a minor” just refers to the last part of the sentence, “abusive sexual conduct,” not to what came before.

An op-ed by Noah Feldman. Can you sue a company in federal court for publishing false information that might affect your credit score? Congress says yes. But the Supreme Court seriously considered the possibility Monday that Congress lacks the authority to create that right to sue if you haven't suffered a concrete injury. The issue has far-reaching consequences for your rights and expectations of accuracy in the information economy. Everyone from Experian to eBay has weighed in with friend-of-the-court briefs. There's also a right answer -- but no guarantee the court will reach it.

Thanks to a generous gift from Mitchell R. Julis, one of America’s most successful hedge fund managers, Harvard Law School announced today the launch of the Julis-Rabinowitz Program in Jewish and Israeli Law. The new initiative will fund visiting scholars and fellows, hold classes devoted to traditional Jewish legal texts, host an annual conference, and organize events related to “the impact and study of Jewish law in Israel, in the United States, and across the world.”...The Harvard program’s director will be Noah Feldman, the Harvard law professor and public intellectual best known for helping to write the Iraqi constitution in the aftermath of Operation Iraqi Freedom. “Jewish law and Israeli law are distinct and different,” Feldman said, explaining the rationale for the new center, “yet they also interact and make claims on each other. It makes sense to study them both in the same program, even as we study them independently.” The Julis gift, he added, “gives us a broad ambit to bring in a wide range of voices to explore these fascinating and rich topics from all sides.”

An op-ed by Noah Feldman. In July, a house in the Palestinian village of Duma was firebombed. A family of four was inside: Saad Dawabsheh, his wife and two children, ages 4 and 18 months. Only the 4-year-old survived. The leading suspects for the attack are Jewish, part of a loose network known in Israel as “hilltop youth,” teenagers who grew up in small and often unsanctioned settlements in the West Bank, especially in the region they call Samaria...Although small, this movement represents a troubling new fusion of messianism, legalism and violence. Its aim is to create a sovereign territory under God’s law. For these reasons, it is worthy of serious analysis and consideration.

An op-ed by Noah Feldman. There’s something inescapably charming about the House of Lords, the upper chamber of the U.K. Parliament with 817 active members. But the usually discreet charm of the aristocracy is under attack this week after the Lords used its power to delay tax-credit cuts passed by the Conservative majority in the House of Commons. The prospect of a Tory government complaining about tradition is deliciously ironic, but it does raise two serious questions: Is there a place for an unelected chamber in a modern democracy? And what benefits, if any, stem from its slowing or delaying the operation of the elected government?

An op-ed by Noah Feldman. The most important document in the most important Supreme Court case of the year is the University of Texas’ brief arguing that it needs to use affirmative action to achieve diversity in its undergraduate class. That brief, submitted Monday for the court’s consideration in Fisher v. University of Texas at Austin, says that the university can’t achieve its educational goals by admitting on numbers alone. Rather, achieving the magic of campus diversity requires a “holistic” effort to treat applicants as unique individuals with distinctive features. Think of the admissions process as a 10-gallon Texas version of the Hogwarts sorting hat, and you get the idea. Is Texas right? And, equally important, can it persuade Justice Anthony Kennedy not to end affirmative action as we know it in college admissions?

An op-ed by Noah Feldman. I realize no American much cares whether the U.S. acted lawfully in planning to shoot Osama bin Laden on sight during the 2011 raid on his Pakistan compound. But new details of the legal game plan to get him, excerpted in the New York Times from reporter Charlie Savage’s forthcoming book, are nevertheless troubling. According to Savage's reporting, senior government lawyers specifically detailed the reasons it would be lawful to kill an unarmed Bin Laden, even if he was in the act of surrendering. This is problematic not so much because of its doubtful legality but for the precedent it sets for lawyers essentially directing shoot-to-kill military operations before the fact.

An op-ed by Noah Feldman. Should law schools admit students who are statistically uncertain to pass the bar on the basis of their standardized test scores? A growing conventional wisdom says no. The worry is that such students will build up large amounts of debt that they won't be able to pay back if they don't become lawyers. This view assumes that it's up to the law schools to make the threshold decision paternalistically, “saving” naive college graduates from pursuing the dream of becoming lawyers when there’s no guarantee that they'll succeed. It treats standardized test scores as destiny and correlation-based studies as gospel.

An op-ed by Noah Feldman. Can an American detained and allegedly tortured by the FBI at black sites outside the U.S. sue for damages? A panel of the U.S. Court of Appeals for the D.C. Circuit said no last week, on the ground that the violations of the citizen’s rights took place abroad. The distinction is mistaken, and the decision is wrong. The Constitution should protect the rights of U.S. citizens against the illegal actions of U.S. government no matter where they happen to be.

An op-ed by Noah Feldman. In an unusual, head-snapping reversal, Amazon.com has convinced a panel of the U.S. Court of Appeals for the 9th Circuit to retract an opinion on its search results technique and replace it with a decision in its favor. To make the result even weirder, the single judge who flipped isn't a member of the 9th Circuit all. He’s a 78-year-old partly retired judge from the Western District of Michigan sitting by designation with the appellate court whose megacircuit covers the half-moon from Arizona to Montana. What gives?

An op-ed by Noah Feldman. Vincent van Gogh’s “The Night Cafe” will stay at the Yale University Art Gallery, the U.S. Court of Appeals for the 2nd Circuit ruled this week, even though the Bolsheviks stole it from a private collector in 1918. The court said it has no authority to consider the validity of a foreign government’s act confiscating private property. So how come confiscated Nazi art, like the Gustav Klimt painting in the film “Woman in Gold,” can end up returned to its rightful heirs, while Soviet-confiscated art can’t? The legal answer turns out to be surprisingly convoluted. In essence, it’s this: The Nazis are different.

An op-ed by Noah Feldman. On the surface, Monday's decision of the U.S. Court of Appeals for the 2nd Circuit upholding most of the assault weapons bans passed by New York and Connecticut is a win for gun-control advocates. But down in the weeds, the unanimous decision by a panel of three Democratic appointees nevertheless points to potential trouble for similar laws should they ever be reviewed by the U.S. Supreme Court. The court held that assault weapons do in general fall within the core protections of the Second Amendment. But the judges applied a lenient standard to uphold the laws -- and a more aggressive Supreme Court might well apply a tougher standard and strike them down.

An op-ed by Noah Feldman. Scientists say they hope to avoid government regulation of genetically modified organisms, or GMOs, by using a variant on a powerful new method to knock out some plant genes. This thinking is worrisome -- not so much for scientific reasons as for legal ones. When research is aimed at achieving a regulatory goal rather than a scientific one, it's a sign that something is wrong with the regulations, and that they need to be changed sooner rather than later.

An op-ed by Noah Feldman. Feel the chill in the air? Winter is coming to the Arab world, with no end in prospect. The meaningless Egyptian parliamentary elections that began Sunday set the scene perfectly. With the only credible opposition banned and its leaders jailed, the election is structurally identical to the sorry affairs in dictatorships before the Arab Spring. The point of the vote is simply to show that the government can engage in the charade of democracy. The public gets it, and any bump to the regime's legitimacy will come only from its confidence that it can produce a result it wants, not from any genuine belief that the people have a say in government.

An op-ed by Noah Feldman. One of the most striking features of the terrible cycle of violence in Israel right now is a recurring disagreement about the facts. From the Israeli perspective, Palestinians are randomly stabbing Israelis, after which Israeli police or bystanders shoot the assailants to prevent further violence. From the Palestinian perspective, the shootings by Israelis are either unprovoked or disproportionate to the threats and therefore amount to extrajudicial killings...But Americans might be able to glean some insight into the otherwise foreign disputes by comparing them to a phenomenon we know better: racially based disagreement about the shootings of blacks by white police officers.

An op-ed by Noah Feldman. Everything came from Egypt, according to the ancient Athenians -- and apparently that includes “Big Pimpin’,” one of Jay Z’s early hit singles. The beat under the rap was laid down by Timbaland, who was on his way to becoming the superproducer he is now, and it relied on a sample from an Egyptian song from the 1950s. On Wednesday, in federal court in Los Angeles, where he's being sued for copyright infringement, Jay Z acknowledged the borrowing but said he’d credited the song’s author, Egyptian composer Baligh Hamdi. The real story is more complicated -- and more interesting.

An op-ed by Noah Feldman. When I clerked on the D.C. Circuit in the 1990s, my friends and I dreaded getting “FERC-ed,” which was what we called being assigned a case involving the Federal Energy Regulatory Commission. The very word FERC can still give me a nightmare in which I’m chased through an endless pipeline by relentless administrative lawyers. On Wednesday, the U.S. Supreme Court was FERC-ed, in a case that asks whether the agency is allowed to pursue a plan to pay consumers not to use electricity at peak hours. Although the topic the justices discussed is technical and complex, the bottom line isn’t: The case is a conflict about federalism, in the guise of a fight about the meaning of a federal law.

An op-ed by Noah Feldman. Giving juveniles mandatory life sentences without the opportunity for parole is an unjust punishment, and the U.S. Supreme Court has ruled it unconstitutional. But that's not enough to get young offenders already sentenced to mandatory life resentenced or released. For the court’s 2011 decision to apply retroactively, the justices would have to deem it a new substantive rule of law. On Tuesday, the justices heard arguments on that question. If they follow the technical logic of their retroactivity rule, things don’t look good for the people incarcerated under a principle that the court now says is cruel and unusual.